Three ads for British Telecommunications plc (BT):
a. A TV ad, seen on 16 April 2016, featured an actor talking about the fast pace of his life. He stated, "That's why I've got BT Infinity. It now offers speeds of up to 52 Mbps – the fastest fibre speeds as standard." A laptop was shown, on which two speedometer graphics were featured. One was labelled "Sky Fibre" and the other, which showed a higher speed, was labelled with the BT logo. On-screen text at this point stated "Fastest speeds vs standard entry-level fibre products of major broadband providers. Sky comparison: Sky Fibre up-to 38 Mbps vs BT Infinity 1 up-to 52Mbps".
b. A national press ad, published on 22 April 2016, stated "BT INFINITY, NOW UP TO 52MB, FASTEST FIBRE SPEEDS AS STANDARD". A footnote stated "Comparison of BT Infinity 1 up-to [sic] 52 Mbps vs standard entry-level products of major broadband providers, Sky Fibre, up-to [sic] 38 Mbps broadband and Virgin up-to [sic] 50 Mbps broadband".
c. A website, www.bt.com, seen on 22 April 2016, featured a section headed "BT INFINITY FIBRE BROADBAND". Text stated "BT Infinity now offers up to 52Mb; the fastest fibre speeds as standard BT Infinity fibre broadband has just got faster. We've upgraded BT Infinity 1 to speeds of up to 52Mb - that's up to 14Mb faster than before and quicker than both Sky and TalkTalk". Above this text were two speedometer graphics. One showed a speed of 38 Mb and stated "Sky Fibre up to 38Mb as standard," the other showed a speed of 52 Mb and stated "BT Fibre up to 52Mb as standard".
Virgin Media, who believed the ads implied that BT’s up to 52 Mb service was the fastest maximum speed for a lowest-priced tier available in the UK, challenged whether the ads were misleading.
British Telecommunications plc (BT) said they had tried to be clear that they were comparing their standard entry-level ‘up to 52 Mbps’ broadband service with the advertised headline speeds of major broadband providers’ standard entry-level broadband; namely, Sky Fibre, TalkTalk and Plusnet at up to 38 Mbps and Virgin at up to 50 Mbps. They said this was stated on their website and in all press advertising. They offered to amend their advertising to make the basis of the comparison clearer and more prominently qualified.
With regard to the claim “as standard,” BT said they had used the phrase according to its everyday meaning and common use, and believed it would be understood by consumers to mean the “standard” or “entry-level” fibre product they advertised. They further clarified this within footnotes and on-screen text by stating “vs standard entry level products of major broadband providers”. BT stated that any customer wishing to obtain their standard entry-level fibre product would be provided with Infinity 1, with a headline speed of up to 52 Mbps. They no longer sold a fibre product with slower speeds. They said the new up to 52 Mbps product had a faster maximum speed than the advertised maximum speeds of the entry level products of all major broadband providers.
In relation to ad (a) only, Clearcast had understood that “fastest speeds” was a comparison against Sky, TalkTalk and Virgin fibre products, so they had asked for, and received, an assurance from BT that no one else was offering a similar fibre product (subject to completion of the speed upgrade). BT had confirmed that the comparison was with major competitors only and that if competitor speed offerings changed then they would revert to self-referential marketing claims.
Clearcast stated they had ensured that for the visuals showing the fastest maximum speeds on the speedometers, they showed accurate speeds and were not exaggerated in any way. They had been satisfied with the graphics alongside the inclusion of the on-screen text to clarify that the comparison was against standard entry-level products.
All three ads stated “fastest fibre speeds as standard” and we considered that consumers would understand this as a claim that, out of the entry-level fibre broadband services available on the market (that is, the cheapest tier of fibre broadband services offered by each provider), BT Infinity had a faster headline speed than any other provider. We understood that the comparison was intended to be against major providers, but considered that the headline claim was very broad and would be understood as a whole-of-market comparison.
With regard to ad (a), we acknowledged that the graphics showed a direct comparison with Sky and on-screen text stated that the broader comparison was against major providers. Ad (c) featured a similar graphic comparing BT with Sky, and we understood that it contained an explanatory statement about the basis of the wider comparison in a section at the bottom of the page that could be expanded by consumers. Ad (b) did not feature a graphic making a comparison with a specific competitor, but did contain the explanatory statement in a footnote. We acknowledged that the graphics in ads (a) and (c) referred to a major competitor, but considered that consumers would understand this as an example of a service that was slower than BT, rather than a clarification that the comparison was only against larger providers. We noted the explanatory notes and on-screen text in each ad. Whilst these did outline the basis of the comparison, we considered that they were insufficiently prominent to counter the overall impression that the comparison was against the whole market. Further, even when considered in light of these qualifications, we considered the ads were ambiguous and likely to mislead consumers because the footnotes and on-screen text contradicted, rather than clarified, the headline claim.
We noted that the major broadband providers against whom BT had compared their service, all advertised a slower maximum speed for their cheapest option. However, we understood that there were other providers on the market whose cheapest (or only) service options advertised faster maximum speeds than 52 Mbps, in some cases significantly so. We therefore considered that, given the likely consumer interpretation of the claim, “fastest fibre speeds as standard” had not been adequately substantiated. In light of the above factors, we concluded that the ads were misleading and had breached the Codes.
Ad (a) breached BCAP Code rules
Advertisements must not materially mislead or be likely to do so.
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors), and ads (b) and (c) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. and 3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Qualification) and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors).
The ads must not appear again in the form complained about. We told British Telecommunications plc to ensure that future ads made clear the basis of the comparison “fastest fibre speeds as standard”.